The legal consequences of not disclosing an STI
What you need to know to avoid lawsuits unlike Usher.
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Last week, two women and one man launched a lawsuit against R&B star Usher Raymond, better known as Usher, because he allegedly had sex with them without first disclosing that he has herpes. One of the women, who says she tested positive for the virus, is reportedly seeking $20 million US for sexual battery, fraud, negligence and emotional distress.
Raymond has reportedly already settled a similar case involving a different woman for more than $1 million U.S.
The herpes virus is absolutely everywhere. A Public Health Agency of Canada study in 2013 found 13.6 per cent of Canadian adults 14 to 59 have herpes type 2, the strain that usually causes sexually transmitted genital sores. Almost all (94 per cent!) didn’t know they were infected.
That works out to 2.9 million Canadians living with herpes. And it raises the question: Could they too be on the hook for millions of dollars if they knowingly expose another person without warning them first?
Nowhere near that kind of money is at play in Canada, explained Halifax mediator-arbitrator Gus Richardson, but the legal consequences could still be severe.
It’s possible to be criminally charged with sexual assault for neglecting to tell someone about an STI before exposing them, Richarson explained, because, the legal reasoning goes, you withheld information they needed to give informed consent.
In practice, convictions are rare and determining the facts often really is a matter of “he said, she said” or “he said, he said,” he added.
Leaving aside the criminal aspect, for people who want to represent themselves or get a settlement “on principle,” small-claims court is an option. Richardson once awarded $218 — the maximum award of this type in Nova Scotia — to a woman whose ex-partner gave her herpes. Other provinces have higher maximums; in Ontario it’s $25,000.
Finally, there are civil suits. Although the damages awarded in U.S. personal injury cases are practically “limitless,” Richardson said, in Canada they’re confined to compensation for things like medical costs and lost wages, plus a capped amount for pain and suffering.
The bottom line, Richardson said, is “If you have an STI, you have to be open about it.”
The ethical issues around disclosing STI status are really complicated, said Sarah Chown, executive director of Vancouver’s YouthCo, a non-profit that supports young people living with HIV and Hepatitis C. That’s because, she said, disclosure comes with “real consequences,” including powerful stigma and exclusion from the community.
Laws that criminalize having unprotected sex without disclosing STI status “aren’t just or helpful,” she added.
“Our vision is a world without stigma. Where saying ‘I have chlamydia,’ and ‘I have herpes,’ and ‘This is a thing I want to do in bed,’ would all be the same thing in a pleasure-based, consent framework,” Chown said.
“We understand an individual needing to disclose as a community-level issue. All of us might have an STI one day. If we think about our responses when someone discloses an STI to us, or what it would be like to be in the shoes of someone disclosing, (that can help in) addressing the stigma and the public health concerns around the epidemics and increasing rates of STIs.”
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